tlemen, then we endanger life upon ex parte depositions. If the bill contained the mischievous principles and provisions which on this floor have been ascribed to it, I am one of the last in the nation who would give their assent to it. The exceptions taken to it consist entirely in declamation. Strip them of that, meet the bill on its merits, and they vanish. 6 6 6 MARCH, 1808. of the articles of war says, "in the trial of all cases not capital, before courts martial, the depositions of witnesses not in the line and staff of the Army may be taken before some justice of the peace, and read in evidence: Provided, That the prosecutor and the persons accused are present at the time of taking the same, or are duly notified thereof." With respect to courts of inquiry, an article says courts of inquiry shall have the same powers to Of what description is the bill now before the collect evidence as courts martial. This descripHouse? It is a remediant bill. The only question of courts, then, have all the powers of courts tions to be asked are, is there a defect in the laws martial, and all the privileges extended to the solon this subject? If so, is it so important as to re-dier or officer in cases less than capital in the one quire a remedy? This is the real and genuine principle. Apply it to practice: is there a defect in the rules and articles for the regulation of the Army? If so, is it of so serious a nature as to require a remedy? Does this bill afford such remedy? If I can show to the House, and I have no hesitation in saying that I can satisfy any reasonable mind, that there is a defect, and of such a serious kind as to call for a remedy, and that this bill affords that remedy, I cannot but expect that the House will adopt the measure now under consideration. court which he possessed in the other. Will any gentleman say that a party accused of a capital offence, to a conviction of which infamy would be attached by the sentence, has one particle of relief from the existing laws? There is but one solitary provision, and that in cases less than capital. A person who is in the regular service may be brought up before a court martial, his life upon the hazard; and when he comes before them what will it avail him to say, that he has witnesses, but cannot compel them to attend? If we examine the articles of war we shall there find at least thirty The rules and regulations in all cases of offen- offences punishable with death or infamy. Is it ces established by those rules, whether capital or then wise, politic, or humane, to suffer such of not, are not defective in the power of compelling fences to exist, and prevent the accused from enwitnesses to attend where proof must be confined joying the opportunity of acquitting himself from to the ranks. If those articles contained no of the charges against him? I believe there is upon fences but such as must necessarily be confined in the present Military Establishment from two to proof to persons in the Army or Navy, there would three thousand men; it is contemplated by a bill be no necessity for the interference of Congress. on the table to increase the Military Establishment Is there one provision in all the articles to meet a by adding thereto six thousand men. A bill yescase either capital or otherwise, where the wit- terday passed authorizing a detachment of one ness is not in service? Yes, there is one; in a hundred thousand militia. In what situation are case not capital, in a case not going to life or dis- they placed, the militia as well as the Army? By missal from office, depositions may be taken the articles of war, the militia when in service are how? Before a magistrate. Even in that case subject to the same discipline as regular troops. there is no benefit of summons. The party ac- Then those men who are to be draughted from the cused, let the offence be clothed with whatever militia, those six thousand who are contemplated infamy, or going even to deprivation of life, has to be raised, and those now in service, are subject not the power of obtaining process for witnesses. to the vilest punishments which can be inflicted The only opportunity he has is, in cases not cap-on men; and ought we deprive them of the benefit ital, to obtain the testimony of a witness by a deposition taken before a magistrate, provided both parties shall be present at the time of taking. Here then is a defect in the existing regulations; with respect to minor crimes, depositions may be taken, but as to capital crimes there is no provision whatever. Will any gentleman here say that a man charged with offences going to infamy shall only have the benefit of depositions taken before a single magistrate, subject to the pleasure of the prosecutor to attend even in that case? That the party accused shall be left to this mere skeleton of a relief to get the benefit of testimony? Was the bill under consideration to go no further than this, I am confident that the good sense of this body would say that Congress ought to pass a bill to meet such cases as that-not only to make more perfect provision for taking depositions, but to give the benefit of process to compel attendance of witnesses. What is the existing regulation? I will read it, as I wish not to state anything in which I am not borne out by the laws of the land. One of testimony to prove their innocence? If a militiaman be charged with one of the offences contained in the various articles of war, and the only witness be a citizen not in service, no testimony could be had. No person acquainted with the transaction is in the military service. In what situation do you place him? Do you not forfeit his life by not applying a relief and remedy? Surely you do; if you refuse him the benefit of process, you certainly place that man in a situation to forfeit his life without relief. Am I or is any gentleman prepared to go home and tell our constituents that we have given our consent to a law for calling into service one hundred thousand militia, while death may stare them in the face in thirty different shapes, without having passed any law to establish their innocence? The moment malignity shall conjure up a charge going to life or reputation, that moment these men may be sacrificed. I am not prepared to tell my constituents that I have done this-that I have left them suspended in this dangerous situation. This being the fact, that an evil does exist, is it such an evil as requires a remedy? I presume that no gentleman in this House is prepared to say that, if such an evil does exist, there ought not to be a remedy provided. Is this the proper remedy? In all cases under the provisions of the bill, where the witness is a citizen, neither courts martial nor military officers are authorized to issue process. It is to issue out of courts of justice. Whence do subpoenas issue in all cases? Out of courts of justice. The bill then provides in all cases pending in military courts martial to give the same opportunity for obtaining witnesses that is provided in suits at common law. It has been objected to the bill that by it the military institution is blended with the civil. It is so from the necessity of the thing. Whence should summons issue if not from the civil courts? Would gentlemen say that it should issue from courts martial? If not from them, where could the power be better intrusted than with courts of justice? Has not the military and civil already been blended in the laws now in existence? Look at the only article which provides for the obtaining testimony in civil cases, and how is it there provided? Do you there go to a court martial or a military authority to take depositions? No; to the civil authority-to a magistrate. There is already in certain cases a provision that the party accused may have the benefit of the civil authority. Does this bill go further? It does-because we did not wish to go to an inferior authority for a summons; we would go to the same source from which all summons do flow-to the courts of justice. H. OF R. given to the circuit courts. A party having suit in the district and circuit courts of the United States can have a subpoena to compel the attendance of a witness if he lives within one hundred miles. Here it is provided that a party being charged in a military court, his life on the hazard, should have the benefit of oral testimony, if to be had within one hundred miles; if beyond that limit he may take depositions. In every instance where a person is put to inconvenience, he ought to be paid for his trouble, and provision is made in the bill for that purpose. It has been objected that in this bill there is no provision for payment. It was conceived that the common law would act in this as in every other case; that the witness had a right to have his expenses tendered him, and if not paid that he might refuse to attend. This bill has been said to be modelled after the mutiny act of England. I have examined that act with the bill and can see no similarity in their features. The mutiny act is annually passed for continuing the army, and one of the provisions of it is that the rules and articles of war shall be framed at the pleasure of the King! There is surely nothing like that in this bill. Is it true that the civil authority is subjected to the military by this bill? What are the authorities given by this bill to the civil authority? They are to issue a summons and subpœna duces tecum; the manner in which process shall be served and punishment inflicted are specified in the bill. What authority does it vest in courts martial or of inquiry to exercise one solitary power? All the power that a court martial can exercise under this bill is the mere simple power, when the witBut it is objected that by this bill a person is com- ness does appear, to receive his testimony. A pelled to submit documents to the inspection of a court of justice issues the summons, it is served military court martial. Good cause is first to be by a civil officer, returned to a civil court; if the shown to a civil court; it is not to be issued upon witness or officer to whom the process be directed a mere application; good cause must be shown, be guilty of disobedience, they are punishable by verified by affidavit, and the paper must be de- the court which issued the summons; and courts scribed. But gentlemen tell us that this is mak-in civil cases possess the same power precisely, in ing the judges of the superior courts bend to the military. This provision was introduced for the purpose of guarding the right of the citizen to have his papers sacred. A magistrate, therefore, is not trusted with this power; the authority is given to the judge of a superior court. Can it be placed in safer hands than theirs? The bill provides that in cases not going to loss of life or cashierment of a commissioned officer, where the witness shall reside within twenty-five miles, the party shall have the benefit of attendance; where the witness shall reside at a greater distance than twenty-five miles, his deposition shall be taken. This regulation was incorporated in the bill for the convenience of the witness. As the bill stood originally the party accused or the judge advocate might take a summons over the whole United States, but gentlemen in favor of the principle considered the latitude given to this provision to be too great, and it was accordingly abridged. As the bill is amended it gives the military court the same privilege of testimony which is all cases of summons from the courts of the United States and disobedience, as the bill authorizes them to exercise on a matter over which, before, they had no jurisdiction. The power given by the bill to military courts extends to the mere examination of witnesses, and no further. The whole of this bill may be included in a nutshell. The principle is to provide a remedy for an existing defect in the rules and regulations for the discipline of the Army, to which every citizen of the United States, from eighteen to forty-five, may by the laws of the land be subjected-it is merely a remedy to protect innocence and punish guilt. If we refuse to provide a remedy for the defect which exists, what will be our consequent duty? To repeal all those rules and regulations, or give the party under their operation some relief. A gentleman from Massachusetts (Mr. BACON) has already told us that the laws and regulations relative to the laws of the several States, go a great deal further than this bill; and he has said correctly. In the State of Maryland the rule for obtaining testimony before courts martial is broad, and gives the court martial full power. It is in these words: [Here Mr. MONTGOMERY read an article in the militia law of Maryland, passed the last session, by which courts martial have a power of issuing summons for witnesses, to run to any place within the limits of the State.] Here then we find a provision in one of the articles for the regulation of the militia of a sovereign and independent State, vesting the power of issuing summons in the courts martial themselves within twenty-five or one hundred miles, or confined to the militia alone? No; a broad power to call for persons residing where they may. A court martial in Worcester may send for persons of whatever age or sex (the power being as broad as that of courts of law) even to Alleghany, a distance of three or four hundred miles. But the law does not stop here; it gives power to a court martial to issue attachment against a witness for non-attendance, and to impose a fine. Contrast this regulation, and I believe it is a good one, with the regulation on your table, which vests in a court martial no further power than to examine a witness when before them. All the powers granted by the bill are to be exercised by the civil courts under the laws of the United States. I think, therefore, the principles of the bill are correct, and the power vested in an authority by which it is not likely to be abused. Mr. SLOAN said, that during the discussion on this subject he had remained silent; and if the bill in its operations had been confined to the military, he should have remained content to give a silent vote. Had he considered it merely harmless, he should have been silent; but considering it a dangerous innovation, striking a blow at the most sacred rights and privileges, he could not, consistently with his conscience, sit still and barely give his negative vote. Shall I, said he, be branded with joining in opposition, with having departed from principle? I came not here to see with any man's eyes, to hear with any man's ears, or judge with any man's understanding. I came here to use that discretion which God and nature have given me, and to protect in every case the liberties of my country. However high I may value, and my former conduct has fully evinced this, that part of the House who are supporting this bill, however near and dear has been my connexion with them, it would ill comport with the dictates of my conscience, and the rights and liberties of my country, should I look to the source whence this or any other bill has been produced. Whenever I am intrusted as a watchman to guard the treasure of our rights, it behooves me to look at the production and not at the source from which it flows. I have considered this bill as aiming a deathblow at the rights and liberties of the people of the United States, and if gentlemen are anxious that their speeches should go forward and their votes be recorded, I do not wish to disguise my sentiments or conceal my vote. Although much has been said on the cause and operation of this bill, I beg the attention of the House to some MARCH, 1808. brief observations on what gave rise to it. A resolution was introduced to raise a committee of inquiry into the conduct of a certain high officer; I opposed this measure, and it is certainly within the recollection of every member that I not only opposed it, but zealously opposed it. Is there a member on the floor who was more decidedly opposed to it, or one who expressed himself in more pointed language, believing that it was unconstitutional, and not within the line of our duty? While, however, I expressed my dislike to that measure, I considered it of trivial consequence, compared with this bill. It was a temporary and singular affair; if unconstitutional and improper, it was confined to a single object, and when that had been obtained, would have ceased to operate. But what is this bill? Not temporary; for unless a future Congress repeal it, it will continue in perpetuo. And what a blending of two powers together! Shall I be accused of presumption or ignorance in offering my sentiments in opposition to those expressed by a number of members of legal abilities, who no doubt suppose they have explained this matter in so clear a point of view that there can be no doubt on it? However I may respect them, and however superior may be their knowledge, I must act according to the dictates of my conscience. Permit me to say, that I cannot understand the language of some gentlemen. A gentleman from Kentucky, of legal knowledge (Mr. JOHNSON) says, that if this bill extended military powers, he would oppose it; this he declared, and I cannot understand it. If I understand the subject right, the power of military courts is at present confined within the line of the Army; on the other hand, if I understand it aright, this bill extends their power to six millions of people, to every inhabitant of these States. I must go to school again before I can understand this; it is an extension to a dangerous degree, and such as I hope will never be sanctioned by a law of the United States. It is giving to a tribunal, before limited in its powers, a power which is unlimited as to the extent of its operation, and depending entirely upon the Com. mander-in-Chief. I have no opinion of mixing the two powers together. I cannot conceive any case in which the provision could be of service except the one to which he had alluded, and that can have no weight; I cannot see that it can have any bearing on that case, or be of any advantage to the accused. What is his situation? Certain witnesses have been summoned; their refusal to attend is sufficiently significant, and answers every purpose of exculpation; therefore, this case does not apply. This bill mixes together the two powers, military and civil, which have heretofore remained entirely separate, and God grant that they may ever so remain. I hope to speak with proper deference and respect to my brethren in legislation, but I must speak plainly and in the language of which I am capable. Under this impression I must ask whether they would have given their sanction to this bill ten years ago? At that time, although I did not possess a seat on this floor, my attention was turned to the liberty and true interest of the country, nor can I now agree to this principle; I would not when John Adams was President, nor will I now when Thomas Jefferson is President. A member from Maryland, who spoke this morning, observed, that it was scarcely possible to introduce a bill in such a shape but ingenuity will find objections to it; permit me to retort by saying that no bill, however improper, can be brought into this House but the ingenuity of members will find some plausible pretext for it. The gentleman has told us that if the bill contained those evils, he would oppose it; I will say that if his eyes are open he must see them. He has endeavored to wipe them away; but he has labored in vain, for he has not touched the principle. It is not the detail but the principle to which I object. Cases have been supposed as possible, in order to find a ground for the bill; it has been said that a poor man's life might be taken away for want of evidence. We might sit here year after year to suppose cases which might occur, on which we might pass laws; but we cannot legislate upon suppositions. I call upon gentlemen to say whether in twenty years, in so perilous times, one single man has become the victim of a tyrant; whether in one single instance a man has been put to death unjustly? Did ever a military man suffer, crying out when the rope was about his neck, "I die for want of a witness ?" I believe not. It seems to attract the attention and sympathy of the members of this House to vote in favor of this bill, because there is a prospect of calling out the militia. The argument is poor. I understand by what I have heard read that the militia called out are to be tried by courts martial consisting of their own officers. Will the calling these men into service immediately transform them into tyrants? I cannot suppose that a court martial consisting of militia officers would deny to the party accused the opportunity of obtaining witnesses; on the other hand, I will not suppose that any witness would be so unjust as to refuse to attend to screen an innocent man accused. This has been the case for thirty years, and such I trust will always be the case. It is contended by the supporters of this bill that the law respecting courts martial is too vague. I am not a military man; but if I had known nothing of the subject before this discussion, dull indeed must have been my old brain, if I did not know something about them by this time. If I understand the nature of a court martial, it was intended to exist but as an evil, to punish crime which it would be dangerous even to the safety of the United States to try in civil courts. Does this bill go to destroy entirely this plan? Dull of apprehension must any person be, who cannot see that it may prove of ill consequence. If there should be a traitor taken before a court martial who shall declare that he has a witness in civil life, may he not evade a trial, till he may escape prosecution? Is it not better that the law as it now stands should take its course, and that traitors should be brought to immediate justice? I conceive it is. I shall not much longer take up the time of the H. OF R. House. I have endeavored to discharge my duty. I believe that the military officers in our standing army will perform their duty with propriety, humanity, and justice, and that we should never take from them the necessary power, that is, the power to punish traitors in a summary way, and I will not entertain a thought so derogatory to their honor, as to suppose that this power will be abused. I will suppose that the officers of both our regular force and militia, if we should unfortunately be involved in a war, will continue to act with humanity, justice, and propriety. I wish to keep the civil and military powers distinct; the blending them would lay a foundation for military despotism. It is of no avail to tell me that we have a worthy President; I acknowledge it; but that is no reason to tell me that the power given by this bill will not be abused. I am not certain how long that will be the case; and I will give no power to a virtuous man which a vicious man might abuse. Mr. S. concluded with a solemn hope that the bill would not pass this House; if it passed this House, that it would not receive the sanction of a law. Mr. HOLLAND certainly expected that the gentleman last up would vote for this bill after declaring that he entertained so high an opinion of courts martial. In this respect, said Mr. H., there is no difference in sentiment between the gentleman from New Jersey and myself. I believe that no danger will arise from giving the power contemplated by this bill to courts martial to examine witnesses, because I believe that the officers composing courts martial are gentlemen, and know how to treat witnesses with that respect to which they are entitled. I believe that witnesses will be under less embarassment when giving their testimony before a court martial than before a court of civil jurisdiction; and my reason for that belief is this: I admit that military courts may not be possessed of much legal information, but the witness is not liable to be interrupted by the examination of an attorney; courts martial will not suffer this; they are men of honor. The witness then is relieved from this, and this is the most disagreeable to a witness, who dreads cross-examination, and rightly too, as he is often made to contradict himself. This does not occur to a witness before a court martial. A gentleman from Kentucky, (Mr. RowAN,) while on this subject, mentioned that one great inconvenience by this bill is, that the witness has not the power to bring in other witnesses to corroborate his testimony. This is not the general practice in civil courts; it has not been the practice so far as I know in civil cases. It is true that when a witness is brought before a court and there are circumstances which may discredit his testimony, either party has the right to bring in corroborative testimony. The principle, therefore, in that respect is the same in courts martial, if this bill pass, as in civil courts. It will always be in the power of the parties before a court martial to bring in testimony to strengthen or to invalidate testimony, This bill has been objected to because it augments the power of military courts. Is this correct? Does this bill give any new jurisdiction? Certainly not, for it does not give them power over a single subject of which they had not power before. What is it that the bill contemplates? Nothing more than to enable courts martial to have a full view of the subject before them. As the law stands they have not this in their power. Courts martial now can only partially procure witnesses; the bill before us is intended to remedy that evil-not to give new powers to courts martial, but to allow them testimony which under the existing law cannot be brought before courts martial. For this purpose, and this alone, is the bill brought before you. Is it not proper, laudable, and right? Why shall the citizen whose integrity cannot be doubted, be excluded from giving testimony before courts martial? There is no reason why persons accused before a court martial may not have the benefit of testimony, nor why Government may not have the same to support the guilt of persons accused. It is certainly clear that courts martial ought to have before them everything relating to the subject, and ample power should be given to obtain it; to effect this object the bill on your table has been produced. Then why this great clamor against the bill? It seems a little strange that gentlemen should take the ground they do, when we consider the manner in which the subject was introduced, and the circumstance which induced the House to consider this bill. A cry was raised in this House against a certain officer; a resolution was passed requesting the President to inquire into his conduct. This was opposed by myself and others. A majority of the House, however, resolved that an inquiry should be made into his conduct. The President of the United States informed the House that an inquiry had already been granted; and it would seem to me, independently of the suggestions of the President, that gentlemen who wished an inquiry would have agreed to examine the law, and see whether it afforded the remedy which they themselves had suggested. Have they done so? No. When the law is examined and found to be defective, and that witnesses cannot be brought forward to support the prosecution, or to exonerate the officer if innocent, they are off; they want no more of it; they will not touch it. I should suppose those very gentlemen would vote for a law to make this inquiry ample and just; that they would supply the defect, more especially if they believe the officer to be guilty. I should think gentlemen would, en masse, come forward, and empower the courts to prosecute an inquiry. When this subject was under discussion it was suggested that no doubt the President would do his duty. Consistently with that language, gentlemen ought now to come forward and enable the Executive to do justice. Will they do so? No; they wish the law to stand as it is that the great mass of our citizens should be excluded except they voluntarily tender their services. Is it possible that under circumstances of this kind, an officer on trial can MARCH, 1808. show his innocence? Certainly not; it has become necessary to pass this law to effect the object gentlemen had so much at heart at an early period in the session, that a certain high officer might be either condemned or acquitted. I trust considerations of this kind will incite every gentlemen who voted for that inquiry to support this bill. Mr. PITKIN. It was not my wish, Mr. Speaker, nor indeed was it my intention, to have troubled the House with any observations on the bill before you. I should have contented myself with giving a silent vote upon it, did it not contain such principles and such provisions for the purpose of carrying those principles into effect, as I never can consent to sanction. the I should not, however, have trespassed upon already exhausted patience of the House, in this late stage of the discussion, did I not view the subject in a light somewhat different, even from those who have expressed their sentiments in opposition to the bill. It has been stated by most of the advocates for the measure, and this statement has not, to my recollection, been contradicted, but it seems to be admitted by its opponents, that the principles and provisions of this bill are similar to those which have been adopted in Great Britain in relation to courts martial and courts of inquiry. I do not, sir, understand this to be the case. The principles contained in this bill, if my understanding of the law of Great Britain is correct, go much further on this subject, and give much more extensive and extraordinary powers to military courts than has ever been given them in that country. It is well known that in England as well as in this country, regular armies are governed by what is called the law martial, and that this law is enforced by means of military courts, which are of two descriptions, viz: courts martial and courts of inquiry. It is equally well known that the crimes, as well as the punishments under the martial law, and all the proceedings in these military courts, are very different from those under the civil or municipal law. And no principle is better established in England than this-that these military courts have no power of authority whatever over any persons but those who belong to the army, and that they cannot compel any person, in civil life, to appear before them to give testimony, or for any other purpose whatever. As, however, it may happen, and undoubtedly has happened in that country, that those not belonging to the army may be wanted as witnesses in courts martial, the civil courts there have lent their aid, in order to enable them to have the benefit of such testimony. The mode of proceeding in such cases I understand to be this: The judge advocate presents a petition to the civil court, showing the necessity and importance of the attendance of a person not belonging to the army; and if the court are satisfied that his attendance is necessary, they will direct a summons to issue for that purpose. That I am not incorrect on this point, I will beg the indulgence of the House while I read a short passage from "An Essay on Military Law," a work of some |